What is asylum?

Asylum is the legal protection afforded by the United States government to a person who can demonstrate a “well-founded fear of persecution” based on race, religion, nationality, political opinion, or membership in a particular social group. Asylees are distinguished from refugees by their presence in the country. They are seeking protection from deportation after having entered the United States, legally or illegally. The opportunity to apply for asylum is offered to both refugees outside the United States and people who have entered the country illegally. Those who can demonstrate a credible fear of returning to their home country due to past persecution based on any of the five protected grounds may receive status in the United States. However, status is never guaranteed.

Two Tracks for Gaining Asylum

People generally refer to the two tracks for gaining asylum as affirmative and defensive. The distinction comes from having to defend oneself in immigration court. Affirmative asylum seekers have not yet begun the deportation process in court. Rather, they present their cases in a less adversarial, office-like setting to immigration officers at the United States Citizenship and Immigration Services (USCIS). Those who file defensive asylums must prove their case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The USCIS is an agency in the Department of Homeland Security whereas the EOIR is part of the Department of Justice.

If the USCIS officer denies the affirmative applicant asylum, it triggers the defensive process in which the applicant is given another opportunity to prove his or her case before an immigration judge. Respondents referred to the Immigration Court are entitled to a de novo hearing in which the immigration judge is not bound by the prior USCIS decision. Favorable adjudication of an asylum claim always depends upon the respondent’s ability to show that a reasonable person in his or her circumstances would fear returning to the country of origin. This fear must be “credible” and “well-founded,” perhaps due to past incidents of harm in the country of origin. The applicant’s experience of past persecution must also have been based on race, religion, nationality, political opinion, or membership in a particular group.

Asylum Filing Times

Applicants have one year from their time of arrival in the United States to file for asylum. Failure to file within one-year may preclude asylum as a form of relief. This is known as the “one-year bar.” Exceptions to the one-year bar include changed country conditions and extraordinary circumstances beyond the applicant’s control. If the applicant’s home country was safe when he or she left, but recently became embroiled in a bloody civil war, these could constitute “changed country conditions” making it too dangerous to return home. Similarly, “extraordinary circumstances” such as a mental defect, serious illness, or ineffective assistance of counsel could have prevented an applicant from filing within one year of arriving. The applicant is therefore not barred from filing after the deadline.